Civil Liberties: Big Victory for Charities

OPINION
The National Law JournalJanuary 16, 2006

coalition
of 13 not-for-profit groups took on the U.S. government and won.
By commencing litigation (recently dropped), these organizations — including
the American Civil Liberties Union (ACLU) Foundation, the NAACP
Legal Defense and Educational Fund Inc. and the Natural Resources
Defense Council
— persuaded the U.S. Office of Personnel Management (OPM)
to rescind its recently adopted requirement that, as a condition
of participating in the Combined Federal Campaign (CFC), applicants
screen recipients of funds and employees against various official
watch lists. In so doing, they struck a significant blow to the
administration's hydra-headed 'war on terror' — which has
often degenerated into a wrongheaded war on civil liberties.

The CFC, administered by OPM, is the only instrumentality through
which charities may regularly solicit federal workers on the job.
More than 2,000 such organizations receive money from the CFC;
in 2003, it raised almost $50 million. Since 1984, its basic structure
has remained the same. But in 2004, OPM adopted a novel certification
as part of the CFC's application form: Would-be participants had
to attest that they did 'not knowingly employ individuals or contribute
funds to organizations' appearing on 'terrorist related lists promulgated
by the U.S. Government, the United Nations, or the European Union.
' (For 2005, the latter two sources of lists were omitted.) Issued
in the wake of the 9/11 terrorist attacks, the major U.S. governmental
schedules, Specially Designated Nationals (SDN) and Terrorist Exclusion
List, consist of individuals or groups allegedly linked to terrorism
or money laundering, with whom various statutes limit or ban transactions.

While the certification did not mandate inspection of the lists,
on July 31 2004, the New York Times quoted Mara Paternoster, CFC
operations director, as saying that list checking was required.
Notably, by late 2004, the SDN list alone contained about 6,300
names covering 166 pages! Some, like Juan Cruz, are exceedingly
common; others, like Ahmed the Tall, are incomplete or aliases.
Several lack other identifying data. Predictably, not-for-profits
protested against the unprecedented burden placed on them.

Echoes of blacklisting

Yet, as many recognized, not only convenience but also principle
was at stake. Perhaps worst, screening donees and employees recalled
the notorious 1950s blacklisting of individuals charged with being
Communists or otherwise having subversive ties--particularly the
blacklists' breadth and vagueness, the likelihood of yielding 'false
positives,' the inability to learn the identity of one's accuser
and the lack of effective recourse. (Although a party may sue to
challenge the government's refusal to remove his or her name, the
traditional deference paid to the government on matters relating
to national security, the narrowness of the grounds for review
and evidentiary limitations will usually render this avenue futile.)
Such lists, moreover, tend to sweep in people with controversial
religious or political views or merely with foreign-sounding names.

Obnoxious in theory, list inspection is also virtually impossible
to administer in practice. Abundance and commonness of names have
been mentioned. Further, even when a list contains added information
like date of birth or country of origin, a charity cannot ask a
prospective employee to reveal his or her own birth date or nationality
without violating anti-discrimination laws. The bother of doing
the 'due diligence' needed to fulfill the attestation may lead
employers simply to refrain from hiring individuals with names
resembling those on the list, and thus disadvantage applicants
of Arabic, South Asian or Muslim background. That danger is especially
acute, given the uncertainty about the amount of investigation
required for such vetting. (Among the disturbing ambiguities is
how often the burgeoning lists must be consulted.)

Hence, not-for-profits faced a dilemma: forswear substantial
amounts of money that would otherwise aid their cause — some,
like the ACLU, did so — or agree to be deputized as private
police and infringe on the civil liberties of their workers or
recipients of funds or services. They also feared the slippery
slope. To quote OMB Watch, a not-for-profit government watchdog
organization: 'What's next: checking our membership lists, our
client lists, our donors? ' Press release, Nov. 10, 2004.

A group of not-for-profits, therefore, challenged the certification
requirement on statutory and constitutional grounds. ACLU Foundation
v. OPM, No. 1:04cv01958 (D.D.C. Nov. 10, 2004). A year later, OPM
caved, issuing a substitute certification that calls on CFC applicants
merely to state that they are complying with all relevant legal
regulations. List checking, while still 'encourage[d],' is 'not
mandate[d].' 70 Fed. Reg. 67,339-40 (Nov. 7, 2005).

OPM was wise to back off. If the government creates 'enemies'
lists,' let it enforce them — and let charitable organizations
do the work for which they were established.